Tuesday, November 24, 2020

ADR, Pandemic and ...Robots?

A few years ago I had the chance to read a book titled “The Robots are Coming!: The Future of Jobs in the Age of Automatization”, written by Andrés Oppenheimer. In this book, Mr. Oppenheimer stated what the future of several jobs and professions would look like due to the automatization of several activities.

Through the book, the reader learns that a lot of jobs are being supplemented or replaced by robots and technology. Current examples are: self-checkout cashiers in the supermarket; ordering restaurant food through electronic apps; and translators, because translation apps are getting more precise and specialized day by day.

The examples mentioned above do not seem all that new. Actually, since the pandemic and restaurants being closed or operating in a limited capacity, it has become the most common method for us, for example, to order food electronically if we do not want to go out.

The surprise in the book came when I got to the chapter on the future of lawyers.

Yes. Lawyers may be replaced little by little by robots. Several examples of how this is happening currently are well detailed in the book. However, even though the book suggests that some activities performed by lawyers that require expertise and high technical knowledge are going to be supplemented in the near future, I believe that the future may be here already.

If we pay attention to the way we transitioned our daily activities as a result of the pandemic to the way we do them now, we realize that such transition was almost automatic.

Almost every hearing was moved from physical attendance to remote. Arbitrator, expert, and witness visits to construction sites are changing from physical to remote as well, using drones and BIM modeling technology, and we can follow the project with that tool in real time.

Witness hearings are being conducted by Zoom, Teams, or similar software.

Due to the pandemic this new reality came much faster than we believed before and this situation has made necessary that lawyers advise their clients to transition from common court litigation to methods of Alternative Dispute Resolution that could provide easier, faster, cheaper and most of all, safer and possibly more secure ways to resolve disputes.

In that regard, it is worth mentioning that there are a lot of International Institutes that address this current demand like the International Chamber of Commerce, which in its Rules for Arbitration proposes that communications be exchanged via email (Article 3 of the ICC Arbitration Rules), and also suggests that the case management conference be held remotely (Article 24 of the ICC Arbitration Rules).

Locally for me in Mexico, the CAIC (Centro de Arbitraje de la Industria de la Construcción – Arbitration Centre of the Construction Industry) also suggests that communication be by any technological means.

As the world and our reality moves forward, we as lawyers should adapt accordingly. A good start would be advising our clients to use the ADR Institutions, whether international (like the ICC) or domestic (like the CAIC), that offer a service that fits the current reality, until robots come to resolve the disputes themselves.

Author Juan Pablo Sandoval García is an Associate at COMAD, S.C. (www.comad.com.mx). His email address is jpsandoval@comad.com.mx.

Friday, November 20, 2020

How Great Leaders Build Trust to Level Disputes

If you are reading this article, the chances are high that you have more than a passing interest in dispute avoidance, mitigation, and resolution particularly as it relates to the construction industry. While there are many technical, operational, and legal processes and best-practices that aim to assist contractors and owners in reducing the likelihood of a dispute or to mitigate the overall risk associated with a dispute, a topic that is less frequently discussed in relation to dispute avoidance, though no less important - is that of leadership.

As an MBA alumnus, I have the privilege to stay involved with the business school by serving as a leadership coach for current students. This involves facilitating groups of students as they work through simulations designed to replicate real-world dilemmas. The purpose of these simulations is to teach students to navigate the challenges associated with leading groups, make timely decisions based on incomplete data, and balance individual motivations with team objectives.

If you read the previous sentence and immediately thought, “That sounds like what I deal with every day” -- you are not alone!

Construction’s Unique Challenges

Construction leaders, both in the office and in the field, face a unique set of challenges when compared to other industries. A prime example is the sheer number of stakeholders involved in a construction project – ranging from those funding the project to the sub-tier contractors physically putting steel and pipe in place.

Each stakeholder has their own set of interests, stressors, and goals. While the developer of the project site may be focused on the timing of completion, the lease-up of the facility, and the status of their relationship with city officials, the surety may be primarily concerned with the performance and financial health of the contractor.

As if that were not complex enough, it is also true that even within the same company different individuals can have personal goals that do not necessarily align. Consider the electrical subcontractor’s Project Manager whose immediate career trajectory may be determined by the financial success her company has on the project. This can be contrasted with the Project Executive who is entirely focused on the relationship with the general contractor to increase the chances of landing a future project.

The situation is further complicated by the fact that construction project teams are rarely repeated from one project to the next.

This means that not only do the collaborators involved in a construction project have individual goals that may or may not be aligned with one another, but many of the team members have never worked together in the past! These factors, coupled with the capital-intensive (i.e. expensive) nature of construction are a combination which, if not managed properly, can lead to disastrous results - as evidenced by the billions of dollars of construction currently in some form of dispute resolution.

So, the question becomes:

How can construction project teams appropriately balance individual objectives with overall project goals in order to create a shared future that considers all stakeholder interests and produces innovative solutions? Oh – and that all needs to be done quickly because according to the schedule you are already behind!

The Missing Piece

As many of the MBA teams discover in the simulations, there is a common theme that emerges which explains many of the pain points and failures experienced by both the MBA and construction teams…


Or rather, a lack of trust.

Tell me if this sounds familiar to you,

I felt like our discussions were guarded and we were all holding something back.”

This is a quote from a current MBA student during a recent simulation. This reflection hits the nail on the head. It reminded me immediately of countless OAC (Owner-Architect-Contractor) and subcontractor meetings that I have attended in the past.

In his book, The Five Dysfunctions of a Team, Patrick Lencioni astutely places the “Absence of Trust” at the base of his pyramidal model for the common pitfalls individuals and organizations fall into – which lead inevitably to a lack of effective teamwork.

As can be seen in Lencioni’s model, the absence of trust on a team is directly linked to several other ‘dysfunctions’ that hinder project success – fear of conflict, lack of true commitment, etc.

So, what exactly is an “Absence of Trust”?

Put simply, it means that the individuals comprising the team are not comfortable being their true authentic selves and are unwilling or unable to be vulnerable to each other. Team members who are not open with one another about their own mistakes and shortcomings make it impossible to build a foundation for trust.

As Lencioni puts it in his book,
"As 'soft' as all of this might sound, it is only when team members are truly comfortable being exposed to one another that they begin to act without concern for protecting themselves. As a result, they can focus their energy and attention completely on the job at hand, rather than on being strategically disingenuous or political with one another."
From a dispute avoidance perspective, the above quote is particularly relevant and is critically important to understand. This is because while the vast majority of contractors and owners naturally desire to avoid damaging relationships with clients and/or costly litigation, an extreme focus on protecting only oneself and keeping project team members at arms reach in an attempt to stem off a potential dispute never allows the project team to become “High Performing”. Ironically, this less-productive, low-performing team that hasn’t cultivated the foundation of Trust necessary to effectively communicate issues within the pressurized environment of a construction project is actually more likely to find themselves heading into a dispute!

This is not to say that the members of the project team should abandon the processes, procedures, and best practices developed to protect themselves in the event of a dispute. Simply that a focused effort must be made by the project executives, managers, and field supervision to ensure that while following these procedural best-practices, authentic relationships built upon mutual trust, are still fostered among all project stakeholders.

How to Identify if Trust is Lacking

Below are a few additional red-flags that may indicate the level of trust within your team is lacking.

1. Communication is “guarded”: Team member’s true motivations or intentions are not openly discussed - which can result in other stakeholders making inaccurate assumptions or even projecting their own motivations;

2. No safe space for conflict: Team members do not feel comfortable disagreeing with one another. This leads to false consensus - team members not truly buying in to the plan even though they “agreed” to it;

3. Hesitate to offer help outside their own areas of responsibility; and

4. Dread meetings and find reasons to avoid spending time together.

Teams with a lack of trust tend to spend far too much time managing the way they interact within the group rather than focusing on the overall objectives of the team.

If a lack of trust is evident within your project team, the logical next question is: How do we create trust?

Creating Trust

One of the key lessons for any leader to know about building trust is that as leaders, it is our job to cultivate an environment in which trust can flourish. This means creating an atmosphere in which our team members feel safe to give their true, unedited thoughts and opinions. Often, this means being the first person to show vulnerability – speaking up when you need help, openly discussing your motivations, giving the other people on the team a glimpse at the real you and putting aside your own need to be invulnerable in the eyes of your team mates.

This may seem counter-intuitive when considered through the lens of dispute avoidance, mitigation, and resolution. Indeed, the ability to balance the necessary legal and procedural best practices to protect one’s own interests while simultaneously building authentic, trust driven, relationships with other project stakeholders is one of the most difficult to finesse. Mastery of this skillset separates the good leaders in construction from the very best.

Unfortunately, as we all know, trust is not built overnight. In the construction industry, project teams are rarely the same from one project to the next and with today’s aggressive construction schedules, there is no time designated for “building trust” – despite its criticality. This is one reason it is so crucial for construction teams to utilize the most effective and proven methods available for building highly performing teams and to make conscious efforts to foster trust within the project team from day one.

A version of this article was originally published on LinkedIn.

Chase Callaway is a licensed Professional Engineer and globally certified Project Management Professional with David Pattillo & Associates, a Socotec Company. He has a decade of experience in the construction industry providing project management and consulting services to owners, contractors, architects, and engineers. Chase has worked on Domestic and International dispute engagements related to the construction of power generation facilities, mining operations, oil and gas operations, manufacturing plants, and government facilities. He also has extensive experience in the construction of commercial, industrial, educational, and medical facilities. Chase obtained a B.S. in Mechanical Engineering from the Georgia Institute of Technology and his M.B.A. from Emory University’s Goizueta Business School with concentrations in both Strategy and Leadership. While at Goizueta, Chase was honored to serve as President of the Evening MBA program during his final year and was elected by his peers to receive the Core Value Award for Community. 

Monday, November 9, 2020

What's Up at Division 1 (No. 5)

D1 Members . . . October was a BUSY month for us.  Here is a summary of some of what we all did. 

Division 1 Virtual Planning Retreat

On October 13th, we held a virtual planning retreat from 3-5PM.  We had a good representation of our steering committee members, liaisons, and excellent volunteers on the zoom meeting.  We focused on four topics:

  1. Member Recruitment & Engagement 
  2. Division 1 Program / Publications Concepts (particularly virtual programs)
  3. The Dispute Resolver Blog 
  4. Upcoming Forum Meetings 
Member Recruitment and Engagement. Division 1 is an inclusive and ambitious group.  While we have a strong membership, we are always looking for new construction lawyers to bring into Division 1.  During the planning retreat, we discussed how we can increase transparency regarding ways and levels to get involved.  We also discussed our outreach efforts including sending D1 branded desk crumbees to our active members as a thank you.  We discussed reaching out to the Young Lawyers Division and work on programs with the Diversity and Inclusion Committees to expand our membership and give speaking/writing opportunities to our members.   Here are a few concrete example of what we have done along these lines:

We (Katie Kohm) put together the above video explaining how to get involved in Division 1.  The video has great information including the contact information for each of D1's steering committee members.  

We continue to send out our D1 Desk Crumbees.  Here is a photo Steering Committee Member, Rob Ruesch, sent to me with his desk crumbee.  

Division 1 will support the Forum's guide program -- a mentorship-style program without the mentor word.  This initiative will pair up active Forum members with Forum members who are looking to get more out of their Forum membership.  For those interested in serving as a guide, there is a call scheduled for tomorrow (11/10). Please reach out to me if you are interested.  

In addition, we will promote the Forum's new supercharging your Forum membership handout that is full of information about how to get the most out of your Forum membership including speaking, writing, and leadership opportunities. 

Division 1 Program / Publications Concepts (particularly virtual programs)

While we may not be traveling in January to San Diego for the Midwinter Meeting, there are lots of ways that we can interact with our Division members.  We had a 30 minute plus brainstorming discussion about "big ideas" for virtual programing for Division 1 and the Forum generally.  This committee led by Joe Imperiale is just getting off the ground.  If you want to join this "D1 think tank" -- please email/call me!

The Building Results program on October 20th is an example of the success of virtual programs planned by Division 1.  150+ registered for the event with 80+ attending.  About half were law students and half were construction lawyers.  Most, but not all were Forum members.  The first part of the program was a excellent panel discussion.  If you missed the event, you can watch the video of it here:

The second part of the program had networking between construction attorneys and law students.  We had 10 different breakout rooms. Thanks for all of our discussion leaders for helping with this program.  Below is a screenshot from one of the breakout rooms:

The Dispute Resolver Blog & Upcoming Meetings.  We reported on the success of the Dispute Resolver over the years -- 6+ years old!  We gave credit to the excellent editorial team and discussed content that we can publish to benefit the construction law community.  We discussed upcoming meetings and the status of the same.  Keep an eye out for the Forum potentially planning a virtual construction conference next year!  D1's CLE subcommittee team has been working hard to schedule upcoming webinars through 2021. 

While I missed being with everyone at the planning retreat, I was proud of what we accomplished and the energy of our group.  I am particularly excited about a new virtual series we are starting in a few weeks -- D1 Toolbox Talk.  Jade Davis and other members of the Toolbox Talk series have planned an informal, practical virtual discussion series about ADR topics of interest.  Each program will have different discussion leaders.  Check your email inbox for news and announcements regarding the first in the series!  

 I hope you all are enjoying the fall.  It was absolutely glorious in New England this past weekend.  Above is a selfie of my with my family in Cape Cod, Massachusetts.  It was a beautiful weekend.  

As a reminder, Division 1's monthly calls are on the second Monday of each month.  Our next call is today, November 9th.  Join us for today's call or upcoming calls:


Meeting ID: 669 178 3882

Password: 826501

Stay safe and healthy.  I look forward to working with you!

Tom Dunn

Chair, Division 1 (Litigation & Dispute Resolution)

401-490-3418 | rtdunn@PierceAtwood.com

Thursday, November 5, 2020

Two Great Forum Webinars in November!

Join the ABA Forum on Construction Law presentation on "Strategies for Confronting Unconscious Bias in the Legal Industry.”

November 18, 2020 at 1:00-2:30 pm EST
1.5 CLE
Click Here to Register!

Despite our best intentions, research shows we all have it -- unconscious, unintentional bias. Unconscious attitudes and beliefs are shaped by all kinds of influences -- some of which we would not agree with or accept on a conscious level. Yet, these unconscious thoughts influence decision-making and can have a profound impact in the workplace and the practice of law -- on retention; productivity; relationships with colleagues, clients, judges, witnesses and jurors; as well as people's careers.

The American Bar Association has acknowledged the ethical implications of bias in its Model Rule 8.4(g) that addresses harassing or discriminatory lawyer misconduct. The key is to learn how to recognize our own unconscious biases as well as practical ways to interrupt those biases so we can make better decisions and serve clients more effectively. You will also learn how unconscious, unintended bias plays out in the legal profession, which is the first step toward advancing diversity in the profession.

The course will be eligible for 1.5 Elimination of Bias or Ethics Credit contingent upon the state.

Erik P. Raines, Hill Ward Henderson, Tampa, FL

Kathleen Nalty, Kathleen Nalty Consulting, Denver, CO

Next, join the ABA Forum on Construction Law for a presentation on "Access and Opportunity: Why the Construction Industry Needs Diversity to Survive and Thrive.”

November 19, 2020 at 1:00-2:00 pm EST
Click Here to Register! 

Jennifer Todd, Founder & President of LMS General Contractors, joins Cathy Altman, Chair of Construction at Carrington, Coleman, Sloman & Blumenthal, LLP, for a candid conversation about the barriers to diversity and inclusion in the construction industry, the steps to create opportunity and access, and why increasing the number of minority owned construction companies and skilled workers is critical to address shortages in the industry.

Jennifer Todd is a 2020 Construction Business Owner Outstanding Women in Construction Finalist and the youngest Black woman to procure a California General Engineering (A) license. She holds a BS from Georgia State University, an MLS from ASU Sandra Day O’Connor College of Law, and a Project Management Certification from Emory University.